Directors Guide To Handling A Winding Up Petition
Shareholders and directors who think the game is up and the only option is insolvency and liquidation, please, think again
. With experience and skill it is perfectly possible to legally trade through a winding up petition to emerge ready for profitable growth.I would like to share with you my recent visits to the High Court to represent clients who are subject to a winding up petition from HMRC. While at Court I see the production line, often of between 100 and 200 per session. A majority of the Petitions are presented by HMRC, at the hearing HMRC officers claim that in spite of repeated attempts, they have not heard from the company and the Petition results in a Winding Up Order granted without being defended.
Each week the High Court is full of companies represented by their directors who turn up having not spoken to anyone, neither HMRC as petitioning creditor nor to their own advisers. In most instances when the director turns up, if they want their company to survive, they will be granted an adjournment giving them time to pay or find a solution.
Two or three weeks later, when they turn up for the adjourned hearing, they often tell a story about why they haven't paid, it is possible they may get a further adjournment but mostly the level of preparation and information is inadequate. To retain control and prevent winding up of the company by the official receiver the company needs to mount a defence that shows they have a plan and a likelihood of satisfying the creditor.
The level of unpreparedness and ignorance is breathtaking. A director arriving in Court having paid the Petitioning creditor can sometimes get a shock when they learn that another creditor has adopted the petition. An ill prepared director, and many are, should expect their company to be wound up. The human life stories can be tragic. When a director has paid HMRC using personal funds only to lose his company due to another creditor adopting the petition he has simply wasted his money.
Let's face it, most Company Directors are effective in good times but totally ill equipped to handle matters when a company gets into financial or legal difficulty. In smaller businesses the flow of financial information prepared by the director stops, because the director is overwhelmed with work dealing with other issues arising from difficulty the accounts get left. The shortage of cash leads directors to think they canmnot afford advice. That is almost certainly wrong. It is precisely because he is in trouble that he MUST get help.
Knowing what the responsibilities are or where to find help is not easy. Many directors assume they are protected by limited liability, they fail to realise that a limited liability company protects shareholders, not directors. It is often not in the company's or the directors best interests to take advice from the usual sources. A banker will always seek to protect their capital, and accountant may see more value in the balance sheet at winding up than from fees and the lawyers will want to collect fees not join a list of creditors. So who then should a director turn to for advice? The answer is a company doctor specialising in turnaround management. A good turnaround manager will quickly assess the difficulty, understand the interests of the company and arrange a restructuring plan that protects the interests of the company and uses a range of specialist legal tools to handle any challenges whilst the restructuring stabilises the position of the business.
Whilst best not left until there is a winding up petition, a turnaround practitioner will often be able to save the business and almost certainly improve the outcome for shareholders and directors. If wound up, the assets of the company are normally all consumed by the winding up administration process and creditors usually leaving nothing for shareholders and the lenders calling in personal guarantees. In a business turnaround the value is normally retained in the company better protecting shareholders and directors whilst debt is restructured.
The six top tips for handling a winding up petition are; Have a current business plan; Keep your accounts up to date and know your plan actual performance, particularly for cash flow; The law about directors obligations when short of cash is clear and it is viatal to know what they are; Seek advice early; Keep talking openly with creditors and inform them of progress. If any of these are not possible, find and take advice from a professional turnaround practitioner, they are good at what they do and on your side.
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